Inquiry’s failings will turn into Royal Omission

Aaron Smale’s coverage of state abuse led to a Royal Commission of Inquiry. But he believes the Commission’s terms of reference will make it another chapter in a 20-year cover-up.

Royal Commissions have an aura about them that gives the impression of great powers exercised for a great cause.

What isn’t always understood is all the ways they can be compromised. And the best way to undermine a Royal Commission is to fiddle around with the details at the front end. If you want to sabotage a Royal Commission go after the scope, funding, terms of reference and timeframe.

Since the terms of reference for the Royal Commission into state abuse have been announced, the headlines have focused on the inclusion of the church, which is an extension of the scope. Most media haven’t grasped what that means. But they have also missed a major detail that is buried in the terms of reference.

First, the church abuse.

I wholeheartedly support the need for an inquiry into church abuse, but I think it should be completely separate. For a whole raft of reasons I think both groups will be short changed by combining the two institutions under the one inquiry. The state is quite a different institution than the church. It has complex legal structures and leaves a large paper trail in the wake of its operations. While some of this archival record has been compromised, there is still a great deal of evidence that the Royal Commission will be able to delve into.

The church, by contrast, is a legal phantom. While it has a complex and global hierarchy, it doesn’t have much in the way of a legal status. How is the Royal Commission going to be able to investigate such an elusive institution, one that is still refusing to take full responsibility in a global sense. And why should the taxpayer be funding an inquiry into an institution that is not accountable to New Zealand citizens?

The other misapprehension is that this inquiry is primarily about sexual abuse. While that is undoubtedly a central issue, the state abuse is far broader than that. It must ask questions about why children were removed from their families, in some cases for trivial reasons; the high levels of physical violence; the almost complete lack of education; the high numbers of Maori relative to their numbers. These issues don’t seem to be a major focus of the church survivors.

There have been parallels drawn with the Royal Commission of inquiry into sexual abuse in Australia. But that parallel isn’t necessarily valid. If the question of the high numbers of Maori children who were incarcerated is central to this Royal Commission (and we have been told repeatedly that it is), then the more relevant parallel is the Stolen Generations of indigenous children in Australia and North America.

Then there’s the logistics, ie. the resourcing. The Confidential Listening and Assistance Service took seven years to hear from just over 1100 victims of state abuse. That’s fewer than 200 a year. CLAS had a narrow mandate and extremely limited resources.

The Royal Commission has to hear not only from survivors, it also has to examine the state’s role in the abuse, which is a complex and detailed task. Currently it has over 500 survivors registering an interest in appearing before the commission and the number is likely to escalate over time. If even five percent of those who went through state welfare homes front-up to the Commission, the numbers will be in the thousands, not hundreds.

Somehow the Commission is supposed to hear from all those survivors, investigate the state’s role in that abuse and many other issues, and do all that within two years before it then moves on looking at the church abuse.

Critical date

But after investigating this story for nearly three years, one of the most troubling things about the Royal Commission is not the extension of the scope but the terms of reference. The terms of reference include a cut-off date of 1999. This has some major problems and is likely to cover up some terrible behaviour by high-profile former politicians and current senior officials.

First, the draft terms of reference had input from MSD and Crown Law. These are the very agencies that are responsible for the institutions where the abuse occurred and who have provided legal cover for that abuse.

It is akin to asking a criminal to supervise a police investigation into their crimes. Conflict of interest is the term that springs to mind.

There has never been any credible reason for this date. Indeed, lawyer Sonja Cooper has clients who were not even born in 1999 who have been seriously abused in state care. There were institutions that were closed before that date and after that date, so it isn’t some significant milestone. And the abuse has continued. Just recently I heard of a child who committed suicide after being abused in a series of placements.

Lake Alice

A little historical digression is in order to give some context.

In the late 1990s a class action suit was taken against the Crown on behalf of more than 40 former patients of the adolescent unit of Lake Alice Psychiatric Hospital. The adolescent unit ran from 1972 until 1977 and has all the hallmarks of a barbaric experiment. The claim made allegations of serious abuse, including rape and sexual abuse by both staff and adult patients (many of whom were criminally insane), torture through the use of electric convulsive therapy, serious assault, illegal detention and other serious crimes.

When Labour came into government in 1999 (there’s that date), Helen Clark and Annette King promised to make things better and eventually the Crown settled by paying out $10 million.

In the process they explicitly acknowledged the truth of the allegations. Helen Clark’s letter of apology to victims, counter-signed by Health Minister Annette King, said: “What happened to you in the Child and Adolescent Unit at Lake Alice was unacceptable. What occurred to children there should not have happened. We very much regret that it did.”

The apology and payout was supposed to make it all go away. It didn’t. A second batch of former patients also made a claim and were also paid out.

To complicate matters further, High Court judge Sir Rodney Gallen was asked to assess how the payment should be divvied out for the first group of claimants. Strangely, that was all he was asked to do. But being a man of some curiosity and integrity, he asked to speak to the claimants and also examined documents and other evidence.

He was so horrified by what he heard and saw that he felt compelled to write a report, which was then duly leaked and which the government fought in court, unsuccessfully, to prevent the media quoting from.

Gallen’s report was stark and unequivocal. In a particularly telling line he described what he had discovered as “outrageous in the extreme.” He stated bluntly that the allegations of sexual abuse were not merely allegations but, in his view, had indeed happened. He arrived at the same conclusion on the other allegations. To paraphrase, the state was guilty of running a den of torture and abuse.

Police and Crown Law

The allegations were then the subject of police complaints, which involved more than 40 former patients (this number later grew). For reasons yet to be explained, the police failed to interview these complainants. After dawdling for around eight years they finally announced there was not enough evidence to prosecute, demonstrating a blatant example of wilful blindness.

All this despite a High Court judge finding conclusive evidence of serious crimes against children; despite Helen Clark acknowledging in a formal letter that it did happen; despite this legal opinion not being based on any serious examination of the evidence; despite the UN repeatedly asking why the Lake Alice allegations had not been properly investigated (ironically it was still asking this when Helen Clark was applying for the top job).

So who instructed the police to not do their job? Was there any political interference? Sorry, the Royal Commission can’t answer those questions because it can’t ask them. Post-1999 you see.

While the police were busy not doing their job, Crown Law was very busy doing theirs. Officials advising government ministers as far back as 1998 were ringing alarm bells. Not only was the government at risk of serious liability for what happened at Lake Alice, there were other institutions that had come to their attention.

Most of the Lake Alice claimants were wards of the state and had been through other institutions – Kohitere, Holdsworth, Hokio Beach, Owairaka and the like – which were under the Department of Social Welfare. They had made similar allegations about those institutions. Lake Alice was simply a Pandora’s Box that officials wanted to keep a lid on. In documents going back as far as last century officials were flagging the potential liability.

Keeping the lid on

In the first story I did on state abuse in 2016 I spoke to Ros Noonan, the previous Chief Human Rights Commissioner. Among other things she told me that when the Lake Alice issue arose previous Attorney-General Margaret Wilson came under pressure from Crown Law officials to “shut it down”.

Margaret Wilson has refused to give an interview on this.

But what I have been told is that she tried to resist the pressure of her own officials and was inclined to deal with Lake Alice in a more open and transparent way. It appears she ran into opposition from her fellow Labour MPs, particularly Helen Clark and Annette King, who did not want such an investigation into what happened and why.

The upshot of all this was Crown Law got its way. It devised and carried out a legal strategy that used all technical legal defences to defeat claims by those who had been abused in state institutions. That strategy has not been revoked.

This might sound dry and technical but it has had some ugly consequences and inflicted further harm on people who have already suffered terrible abuse. I have seen some spectacularly immoral arguments that were put forward in our courts by Crown Law (paid for by you, the taxpayer) to defend the indefensible. These attitudes have permeated the whole state apparatus dealing with these claims. These attitudes started at the top.

And it is this attitude that has meant the redress scheme the government has persisted with has been grossly unfair. It has left a festering sore that is one of the main reasons there was a need for a Royal Commission in the first place.

I’ve yet to pin down all the details of how this happened and how it played out because I’ve been constantly refused access to relevant documents under the guise of legal privilege, despite the Lake Alice case being done and dusted (there are a litany of other bullshit excuses that are too dreary to repeat).

But it is clear that at some point this legal strategy was signed off at the highest levels of Government.

Helen Clark must have been in the loop and had oversight – she was in charge. It wasn’t a trivial matter as it had major fiscal and political implications. Michael Cullen was most definitely involved after Margaret Wilson was shifted sideways into the Speaker’s role and he took over as Attorney General (just to be even-handed, this strategy was vigorously pursued without significant deviation by John Key’s National-led government, particularly by Attorney General Chris Finlayson and Ministers for MSD, Paula Bennett and Anne Tolley).

Who was involved in those discussions and what were their decisions around how to respond to victims of abuse at the hands of the state? Well, the Royal Commission won’t be able to find out because the 1999 cut-off date prevents it from asking those questions.

More questions

Here some further questions I’ve been trying to get answers to.

What part did Peter Hughes (currently the State Services Commissioner) play when he was boss of MSD in the 2000s? What advice was he giving the minister and what instructions was he giving to his staff about how to handle claims of abuse by wards of the state?

Again, I’ve had endless difficulty getting answers. But MSD’s behaviour gives some clues – it has hired private investigators and top QCs to bulldoze victims into the ground in a court of law. Or if you wanted to avoid being shredded by a QC, you could accept a lowball offer.

But the Royal Commission is currently blocked from investigating Mr Hughes’ decisions and actions.

I’d also be interested to know what role Una Jagose (currently Solicitor General) played in Crown Law’s response to state abuse. I’ve seen a letter where she dismissed a victim’s claim out of hand in her role as a Crown lawyer, despite Crown Law knowing the alleged perpetrator had previous convictions for sexually abusing children. Some of those offences happened at Epuni Boys Home, where the claimant had been a resident.

Was this part of a deliberate strategy of denial, even in the face of clear evidence, knowing the invasive nature of a court trial would be too traumatic for many victims to face? That evidence, ironically, led to further police charges and court convictions against the same perpetrator.

Technically the Royal Commission won’t be able to explore these questions because they happened after 1999. Out of scope, in bureaucratic parlance.

That date

If that date stands, the Royal Commission will be able to do less than I can as an individual journalist. At least I can ask those questions. On the face of it, the Royal Commission is being prevented from even doing that.

If I am wrong and the government and public servants have nothing to hide, why don’t they simply remove the cut-off date of 1999 and let the Royal Commission have a look at what happened over the past two decades? Why is Ardern and her government clinging so stubbornly to the 1999 cut-off date when so many experts have made submissions asking for its removal? Why is a Royal Commission of Inquiry into state abuse not being allowed to investigate the state’s response to that abuse when victims started to talk about it, which largely happened after 1999?

It makes no sense, especially when it can take decades for victims of sexual abuse to come forward. Many victims of state abuse when they finally mustered the courage to speak up were told by Crown Law in cold legal language that they were lying, adding further distress. Who authorised that? We won’t find out under the Royal Commission’s current terms of reference.

In a previous piece I wrote I characterised the state as a psychopath – completely lacking in remorse or empathy, manipulative, narcissistic, no insight into their offending, a high risk of reoffending, etc. In its handling of state abuse I argued that the New Zealand state is a textbook case of a psychopath.

And yet again that diagnosis is proving to be frighteningly accurate.

Justice Gallen got it right. The abuse that occurred in places like Lake Alice was “outrageous in the extreme.” But so is the state’s cover-up over the past 20 years. If the Royal Commission can’t examine that cover-up, it will simply be another chapter in it.

It won’t be a Royal Commission. It will be a Royal Omission.

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